Orissa High Court
Case Details
AFR ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 22292 OF 2017 AND W.P.(C) NO. 9877 OF 2019 In the matter of applications under Articles 226 and 227 of the Constitution of India. --------------- W.P.(C) No. 22292 of 2017 Ashok Kumar Sahu ..… Petitioner -Versus- Secretary, Ministry of Personnel, Public Grievance and Pension and others ….. Opp. Parties For petitioner : Mr. Pitambar Acharya, Senior Advocate along with M/s. S. Rath, A. Sathpathy, D. Panigrahy, G. Patra, N. Jena and S.P. Behera, Advocates. For Opp. Parties : Mr. P.K. Parhi, DSGI along with Mr. D.R. Bhokta and Mr. J. Nayak, CGCs [O.P.1] Mr. S.N. Nayak, Addl. Standing Counsel [O.Ps.2 & 3] W.P.(C) No. 9877 of 2019 Kashinath Sahoo ..… Petitioner -Versus- Page 1 of 44 Secretary, Ministry of Personnel, Public Grievance and Pension and others ….. Opp. Parties For petitioner : M/s. Bibhudendra Dash, P.K. Mohanty and N.C. Jena, Advocates For Opp. Parties : Mr. P.K. Parhi, DSGI along with Mr. D.R. Bhokta and Mr. J. Nayak, CGCs [O.P.1] Mr. S.N. Nayak, Addl. Standing Counsel [O.Ps.2 & 3] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR. JUSTICE G. SATAPATHY Date of Hearing: 28.03.2024:: Date of Judgment : 03.04.2024 DR. B.R. SARANGI, J. W.P.(C) No. 22292 of 2017 has been filed by Ashok Kumar Sahu with the following relief:- “It is, therefore, humbly prayed that this Hon’ble Court may graciously be pleased to admit the writ petition, call for the records from the learned Tribunal and after hearing the parties be pleased to issue writ in the nature of certiorari by quashing the impugned order dated 22.6.2017 passed by in OA No.458/2012, under Annexure-4 as well as the clarification of the Central Government (Opp. party no. l) contained in letter dated 14.1.2011, under impugned order dated Annexure-2 and alia 21.5.2011, learned Tribunal Annexure-3 under inter the the Page 2 of 44 withdrawing the benefits granted to the petitioner in consonance with IAS Pay Rules, 2007 as amended from time to time with the prayer to direct the opposite parties to fix up the pay of the petitioner in the Junior Administrative Grade and Selection Grade from the respective dates of the entitlement of the petitioner as provided under Rule 5(c) & (d) of IAS (Pay) Second Amendment Rules, 2008 along with IAS(Pay) Amendment Rules, 2009 read with other relevant provisions of IAS (Pay) Rules in the facts and circumstances of the case: the Schedule-1 of And/or pass any other order/ orders/ direction/directions as this Hon'ble Court may deem fit and proper to secure the ends of justice, equity and fair play.” Similarly, W.P.(C) No. 9877 of 2019 has been filed by Kashinath Sahoo with the following relief:- “It is, therefore, humbly prayed that this Hon'ble Court may graciously be pleased to admit the writ petition, call for the records from the learned Tribunal and after hearing the parties be pleased to issue writ in the nature of certiorari by quashing the impugned order dated 25.02.2019 passed by the learned Tribunal in O.A.No.676 of 2012., under Annexure-3 as well as the clarification of the Central Government (Opp. party No.1) contained in letter dated 14.01.2011, under Annexure-2 and the order dated 21.05.2011, under impugned Annexure-3, inter alia withdrawing the benefits granted to the petitioner in consonance with IAS (Pay) Rules, 2007 as amended from time to time with the prayer to direct the opposite parties to fix up the Junior Administrative Grade and Selection Grade from the respective dates of the entitlement of the petitioner as provided under Rule 5(c) & 5(d) of IAS (Pay) 2nd Amendment Rules, 2008 along with the Schedule-I of IAS (Pay) Amendment Rules, 2009 read with other relevant provisions of IAS (Pay) Rules in the facts and circumstances of the case; the petitioner the pay of in Page 3 of 44 And any other order/orders, direction/ directions as this Hon'ble Court may deem fit and proper to secure ends of justice, equity and fair play.” In both the writ petitions, the petitioners had entered into the State Civil Service as members of Orissa Administrative Service (‘OAS’ in short) and got promoted to the Indian Administrative Service (‘IAS’ in short) and extended with the benefits in accordance with rules, but, subsequently, relying on the office memorandum, after their retirement, such benefit was directed to be withdrawn and recovery was made, which was confirmed by the Tribunal while disposing of O.A. No. 458 of 2012 (filed by Ashok Kumar Sahu) and O.A. No. 676 of 2012 (filed by Kashinath Sahoo). Therefore, both the writ petitions were heard together and are disposed of by this common judgment. 2. For a just and proper adjudication of both the writ petitions, the factual matrix of W.P.(C) No. 22292 of 2017 is taken into consideration. As it reveals from the record, the petitioner-Ashok Kumar Sahu, who is a retired Page 4 of 44 I.A.S. officer, had entered into the State Civil Service as a member of Orissa Administrative Service on 22.12.1976. On 18.04.2006, he got promotion to the rank of Additional Secretary and, while working as such, he was promoted to the Indian Administrative Service w.e.f. 17.11.2006, in pursuance of notification no. 14015/17/200-AIS (I)-13, dated 17.11.2006, as per Indian Administrative Service (Appointment by Promotion) Regulation, 1955 in “Senior Time Scale” under Rule 4(3) read with Clause-2 of Section- 1 of Schedule-II of the I.A.S. Pay Rules, 1954. 2.1. In pursuance of the notification dated 05.04.2007 of the General Administration Department, Govt. of Odisha, the petitioner was appointed to the “Junior Administrative Grade” (Non functional) w.e.f. 17.11.206. Subsequently, by another notification dated 07.11.2008 issued by the G.A. Department, Odisha, the petitioner was promoted to the “Selection Grade”. Consequent upon implementation of the recommendations of the 6th Central Pay Commission, the IAS (Pay) Rules, 2007 was notified, which was partially amended on Page 5 of 44 19.09.2008 and was called “I.A.S. (Pay) Second Amendment Rules, 2008” (in short, Rules 2008). 2.2. The grievance of the petitioner is that although the State Govt. employees, like that of Central Govt. employees, got their pay revision w.e.f. 01.01.2006, he got the benefit of pay revision in the State Scale w.e.f. the date of his promotion, i.e., 17.11.2006. Pursuant to notification dated 15.01.2009, opposite party no.2 revised his pay scale in all the three grades of IAS taking into account the State Govt. Scale received by him till his promotion to IAS. Accordingly, his Basic Pay was fixed at Rs.14,875/- (pre- revised) in the “Senior Time Scale” of Pay of Rs.10,650- 325-15,850/- (pre-revised) and at Rs.15,000/- (pre revised) w.e.f. 17.11.2006 in the “Junior Administrative Grade” scale of pay of Rs.12,750-375-16,500/- under Rule 4 (6 B) of the I.A.S. Pay Rules, 1954. Thereafter, he got the subsequent annual increments w.e.f. 01.11.2007 and 01.11.2008 and, accordingly, his pay was raised to Rs.15,750/-. Consequent upon his promotion to the “Selection Grade” of I.A.S., his pay was fixed at Page 6 of 44 Rs.15,900/- (pre-revised) w.e.f. 07.11.2008 in the scale of pay in “Selection Grade” in I.A.S. of Rs.15,100-400- 18,300/- and his date of next increment was on 01.11.2009. Subsequently, on exercise of his option to come over to the revised pay structure w.e.f. 01.01.2006, re-fixation of his pay was done as per Office Order dated 11.02.2009, which was partially modified vide Office Order dated 03.12.2009. The petitioner thereafter was promoted to “Super Time Scale” and he joined the promotional post on 14.01.2011. Accordingly, his pay was fixed at Rs. 60,960/- (Rs. 50,960/- + G.P. Rs. 10,000/-) w.e.f. 14.01.2011 (FN), i.e. the date of joining in the promotional post in PB-4 Rs.37,400-67,000/- with GP Rs. 10,000/- as per Office Order dated 28.02.2011. 2.3. The petitioner noticed that while re-fixing his pay, the principle of granting two additional increments @ 3% of the sum of Basic Pay and Grade Pay was not followed at the stage of the promotion from “Senior Time Scale” to “Junior Administrative Trade” and from “Junior Administrative Grade” to “Selection Grade”, for which he Page 7 of 44 made a representation on 31.03.2009. In the meantime, the Govt. of India, Ministry of Personnel vide Notification dated 15.04.2009 amended the IAS (Pay) Rules, 2007 by substituting paragraph (l) of the Schedule-I. But fact remains, while the petitioner was in State Civil Service as Additional Secretary (SAG) he was in PB-4, i.e. in the scale of Rs.37,400-67,000/- with G.P. Rs. 8,700/-, w.e.f. 18.04.2006 and he continued in that post till his promotion to IAS, i.e. 17.11.2006. As per the IAS (Pay) Amendment Rules, 2009, the petitioner was entitled to have his initial pay fixed by adding one increment, i.e., he was entitled to the Basic Pay of Rs.38,790/- with G.P. of Rs.8,700/- on his promotion to IAS w.e.f. 17.11.2006. 2.4. Accordingly, the petitioner made a representation to opposite party no.3 on 10.12.2009, pursuant to which, the State Government, vide its letter dated 11.06.2010, sought clarification from opposite party no.l, who, in turn, vide letter dated 14.01.2011, clarified the entitlement of the petitioner. Page 8 of 44 2.5. The opposite party no.l gave an interpretation that opposite party no.3 vide Office Order dated 21.05.2011 revised the pay fixation of the petitioner, who, in the meantime, retired on superannuation on 30.04.2011, from the stage of initial fixation of pay in “Senior Time Scale” of I.A.S. till the “Super Time Scale” and directed recovery of excess payment made to him. Consequently, the Directorate of Animal Husbandry and Veterinary Service, Odisha, where the petitioner was posted before his retirement, directed vide letter dated 25.06.2011 to deposit an amount of Rs.81,825/- said to have been paid in excess of his entitlement. 2.6. Aggrieved by such action, the petitioner, on 28.06.2011, filed a representation before opposite party no.3. However, under coercion, the petitioner refunded the excess payment of Rs.81,825/- on 22.12.2011. The petitioner stated that an amount of Rs.58,216/-, which was due to be paid to him in terms of earlier pay revision/fixation, has also not been paid to him. Therefore, the petitioner approached the Central Page 9 of 44 Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No. 458 of 2012 seeking following relief:- “.....to quash Annexure A/15 to the extent it contains, “Since he has been given the benefit of before fixation of the pay in the Selection Grade of Pay I.A.S. before his actual appointment to the grade, he is not entitled to have his pay re-fixed on his actual appointment to this grade subsequently” for the ends of justice. AND Be further pleased to quash Annexure A/16 and A/17 for the ends of justice. AND of Be further pleased to direct Respondent No.1 suitably amend/modify Rule-S(c) Indian Administrative Service (Pay) Second Amendment Rules, 2008, to the extent it contains 'by adding two additional increments @ 3% of the sum of the pay in the Pay Band-3 and grade pay of Rs. 7600/-, computed and rounded off to the next multiple of 10 and added successively to the existing pay in the Pay Band-3 plus the grade pay of Rs. 7600/-' to bring the claim of the Applicant under its ambit or in the alternate treat the case of the Applicant as an anomaly to be sorted out by extending the benefit of promotion (granting two additional increments) in the grade of JAG for the ends of justice. AND Be further pleased to direct Respondent No.1 suitably amend/modify Rule-5(d) of Indian Administrative Service (Pay) Second Amendment Rules, 2008, to the extent it contains, 'to be computed on the minimum of pay band plus grade pay of Rs. 8700/-....... to bring the claim of the applicant under its ambit or in the alternate treat the case of the applicant as an anomaly to be sorted out by extending the benefit of promotion (granting two additional increments) in the grade of “Selection Grade” for the ends of justice. AND Page 10 of 44 Be further pleased to direct the Respondent No.2 to pass appropriate order for refund of Rs. 81,825/- and release the withheld amount of Rs. 58,216/- along with the interest till the actual refund is made. AND Be to direct the further pleased Respondent No.2 to revise, re-fix the pay of the Applicant and corresponding grade pay from time to time with other entitlements as detailed vide Annexure A/20 and pay the differential amounts with interest for the ends of justice. AND Be further pleased to direct the Respondents to revise and re-fix the pension and determine the consequential revision of retirement benefit such as commutation, gratuity and leave salary accordingly and direct the payment of the differential amount with interest till the actual payment is made in the interest of justice. AND Be further pleased to allow the cost." 2.7. The Tribunal, vide order dated 22.06.2017, observed that even if excess payment has been made by way of a bona fide mistake, recovery is to be made. Since re-fixation of pay was done after clarification of opposite party no.1, therefore, the opposite parties were justified in making recovery as per the law laid down in the judgment of the apex Court. By so observing, the Tribunal did not interfere with the same and dismissed the Original Application. Accordingly, W.P.(C) No. 22292 of 2017 has Page 11 of 44 been filed challenging the said order of the Tribunal dated 22.06.2017 seeking the relief as quoted above. 2.8. So far as the petitioner in W.P.(C) No. 9877 of 2019 is concerned, he stands on the same footing as that of the petitioner in W.P.(C) No. 22292 of 2017. He had also approached the Tribunal by filing O.A. No. 676 of 2012 seeking the similar benefit. His Original Application was also dismissed, vide order dated 25.02.2019, relying on the order of the Tribunal in the case of Ashok Kumar Sahu, i.e. O.A. No. 458 of 2012. 3.
Legal Reasoning
Mr. Pitambar Acharya, learned Senior Advocate appearing along with Mr. S.S. Tripathy, learned counsel for the petitioner in W.P.(C) No. 22292 of 2017 vehemently contended before this Court that clarification was issued by opposite party no.l de hors the rules in the matter of pay fixation of IAS Officers. The service conditions and fixation of pay & emoluments of State Civil Service Officers, on promotion to IAS, are governed by statutory provisions framed under Section-3 of All India Services Page 12 of 44 Act, 1951. The Tribunal has failed to read down Schedule-I of IAS (Pay) Amendment Rules, 2009 along with Rule 5(c) & 5(d) of IAS (Pay) Rules, 2007, as amended from time to time, and interpret all these provisions coherently so as to give justice to the petitioner. 3.1. He further contended that the right to pay & emoluments accrued under statutory provisions cannot be taken away by a mere clarification/ executive instruction, as has been done in the instant case. Therefore, the Tribunal has committed gross error of law in observing that who will get what pay is the prerogative of the Department of Personnel & Training, Government of India, i.e. opposite party no.1. He also contended that in the matter of fixation of pay of State Civil Service Officers, on promotion to IAS, consequent upon implementation of 7th Central Pay Commission, the opposite party no. 1, vide its letter no. 2015/2/2015-AIS-II dated 07.4.2017 addressed to the Chief Secretaries of all the States & Union Territories, has clarified under Clause 3 (a). Therefore, in view of the extant provision of Rule 5(6) of IAS (Pay) Rules, Page 13 of 44 2016 the two additional increments due to MoS inducted into IAS and on actual promotion to the Selection Grade/JAG, cannot be denied due to pay being initially fixed in the Selection Grade/JAG. Thereby, the State Government may ensure that the pay of these Officers on actual promotion to JAG/Selection Grade is re-fixed (only for the purpose of fixing pay on promotion) at Level 11/12 of the Pay Matrix as per current pay drawn and given one increment in the Junior Scale and, thereafter, two additional increments shall be allowed at the level to which the Officer has been promoted. 3.2. He further contended that the instructions which have been issued in the nature of clarification that two additional increments due to members of the service inducted to IAS & on actual promotion to the rank of Selection Grade/ Junior Administrative Grade, cannot be denied due to their pay being initially fixed, at the time of promotion to IAS, under Schedule-I to IAS (Pay) Amendment Rules, 2009. Thereby, the Tribunal has committed a gross error in giving weightage to the Page 14 of 44 clarification dated 14.01.2011 of the opposite party no.1 on the face of statutory rules. According to him, the conditions of service determined by statutory rules framed under the Constitution/ All India Services Act, 1951, cannot be undone by any mere clarification to supplant the rules. The executive instruction by no stretch of imagination can supersede the statutory rules governing the fixation of pay and other emoluments of a public servant, rather executive instruction can only supplement the rules but not to supplant the same. Thereby, seeks for quashing of the order passed by the Tribunal and to extend the benefit to the petitioner. 4. Mr. Bibhudhendra Dash, learned counsel appearing for the petitioner in W.P.(C) No. 9877 of 2019 endorsed the argument advanced by Mr. P. Acharya, learned Senior Advocate for the petitioner in W.P.(C) No. 22292 of 2017. 5. Mr. P.K. Parhi, learned DSGI appearing along with Mr. D.R. Bhokta and Mr. J. Nayak, learned Central Page 15 of 44 Government Counsels contended that though the counter affidavit has not been filed in W.P.(C) No. 22292 of 2017, but the counter affidavit filed in W.P.(C) No. 9877 of 2019 may be taken into consideration. He contended that the Department of Personnel & Training, Ministry of Personnel, Public Grievance & Pensions, Government of India administers the provisions contained in Indian Administrative Service (Pay) Rules as per the recommendations of Central Pay Commission and interpretation of any of the statutory provisions laid down in the said rules, as the Cadre Controlling Authority in respect of the Indian Administrative Service rests with it. As such, the Department is involved in framing of policy pertaining to pay and promotion of IAS officers in general. The pay and promotion of individual officers are decided by the Government of the concerned State cadre in alignment with extant rules/ guidelines/ instructions /clarifications etc. Therefore, the State Government being competent in the matter and also in possession of all service details of the petitioner is in a better position to decide the benefits Page 16 of 44 due to him under extant rules and instructions issued thereunder. 5.1. He further contended that it is admitted fact that the petitioner was inducted to the Indian Administrative Service (IAS) from the Odisha Administrative Service (OAS), vide notification dated 17.11.2006 issued by the Department of Personnel & Training (DoP&T). He was granted 1995 as the year of allotment. He further contended that the provisions contained in Rule 4(3) of IAS (Pay) Rules, 2007 as amended from time to time stipulate that the pay of IAS officers inducted from State Civil Service shall be fixed as per the principles laid down in Schedule-I. Therefore, being the Cadre Controlling Authority in respect of the Indian Administrative Service officers, Department of Personnel & Training has expertise and authority for interpretation of any of the statutory provisions laid down in the said rules and can issue any clarification, instruction or guidelines and that cannot be construed to be contrary to the statutory provisions so as to warrant interference of this Page 17 of 44 Court. In the light of the extant rules applicable during currency of 6th CPC and instructions issued thereunder, the pay of IAS officers inducted on promotion from the State Civil Service and selected from the Non-State Civil Service is to be fixed by protecting the State pay to the maximum of Grade Pay attached to Selection Grade, i.e., Rs.8700/- and granting one increment on such protected pay. Therefore, instructions issued by the Department to all the State Governments, vide letter dated 14.06.2010 and letter dated 01.03.2012, clarifying the fact that fixation of pay of members of service in Junior Administrative Grade (JAG) on promotion to Selection Grade in terms of Rule 4(6) of IAS (Pay) Rules, 2007 is applicable to those officers who are drawing their pay in JAG. The SCS/Non-SCS officers who are already drawing Grade Pay in Selection Grade on induction into IAS are not entitled to additional two increments on their actual appointment in Selection Grade on completion of 13 years of service, since their pay is already protected up to Selection Grade, even before their actual appointment to Page 18 of 44 the grade in terms of provisions contained in Schedule-I of IAS (Pay) Rules, 2007, as amended from time to time. It is further contended that taking into account the provisions contained in Rule 4(6) of IAS (Pay) Rules, 2007, as amended vide notification dated 19.09.2008, suggest that the financial benefit attached to the promotion would be extendable to those officers who are drawing pay in the lower grade. The IAS Officers inducted from SCS/ Non- SCS, who are already drawing Grade Pay attached to Selection Grade as a special dispensation with a view to protect them from any loss on their induction into IAS, cannot claim the same benefits which are available to those officers who are getting benefits on promotion from a post holding lower Grade/ Pay Scale to a post carrying higher Grade/ Pay Scale. Therefore, the clarification issued vide Department's letter dated 14.01.2011 is in consonance with the procedures available in IAS (Pay) Rules, 2007 amended from time to time and instructions issued thereunder. It is further contended that the method of pay fixation as per IAS (Pay) Rules, 2007, as amended Page 19 of 44 from time to time, read with the instructions issued vide letters dated 14.06.2010 and 01.03.2012 have been applicable to the officers of Indian Administrative Service across the country. Any alteration to the said provisions may have serious ramifications of monetary nature with a retrospective effect and it would give way to various anomalies to further aggravate of litigations. 5.2. He further contended that the provisions contained in IAS (Pay) Rules, 2016 and instructions issued vide letter dated 07.04.2017 are with reference to the provisions applicable w.e.f. 01.01.2016. These provisions in no way can be applied to the cases falling to the ambit of 6th CPC. The said instructions have been superseded vide letter dated 28.02.2019, which have been further modified vide letter dated 06.03.2019. Thus, the provisions of each pay commission are distinct and based on the well thought of procedures derived by experts in the sphere. Therefore, provisions applicable to one pay commission cannot be extended to the cases falling in the ambit of other pay commission. Thereby, justified the order passed Page 20 of 44 by the Tribunal and contended that the same should not be interfered with by this Court. 6. Mr. S.N. Nayak, learned Additional Standing Counsel appearing for the State-opposite parties contended that, so far as W.P.(C) No.22292 of 2017 is concerned, the petitioner was an officer of State Civil Service and promoted to IAS w.e.f. 17.11.2006, in pursuance of the IAS (Appointment by Promotion) Regulations, 1955. According to Rule 6(3) of the IAS (Recruitment) Rules, 1954, the initial appointment of the petitioner to IAS was made in Senior Time Scale in IAS. Subsequently, the inter-se seniority of the petitioner was fixed by the Government of India and he was assigned 1995 as his year of allotment. As such, he had already completed 12 years of service by the date of his actual appointment to the IAS. He was granted Junior Administrative Grade w.e.f. 17.11.2006, i.e., the date of his actual appointment to IAS. Subsequently, under Rule 3(1) of IAS (Pay) Rules, 2007, he was appointed to the Selection Grade in IAS w.e.f. 07.11.2008. Consequent upon Page 21 of 44 implementation of recommendation of the 6th Central Pay Commission, the IAS (Pay) Rules was amended on 19.09.2008 and called as the IAS (Pay) 2nd Amendment Rules, 2008 and subsequently, it was further amended on 15.04.2009 called as the IAS (Pay) Amendment Rules, 2009 which deemed to have come into force w.e.f. 01.01.2006. Rule-3(a)(1) of IAS (Pay) Amendment Rules, 2009 states fixation of his pay. Prior to implementation of the above amended pay rules, the pay of the petitioner was fixed according to the provisions contained in the IAS (Pay) Rules, 1954/IAS (Pay) Rules, 2007 in the various grades in IAS. Consequent upon exercise of option by the petitioner to come over to the revised pay structure w.e.f. 01.01.2006, the pay of the petitioner was re-fixed afresh w.e.f. 17.11.2006. 6.1. He further contended that after implementation of IAS (Pay) Rules, 2009, certain doubts had arisen regarding fixation of pay of promoted IAS officers. IAS (Pay) 2nd Amendment Rules, 2008 do not clearly state whether the promoted IAS officers, who have been in Senior Time Page 22 of 44 Scale, Junior Administrative Grade and Selection Grade on one day, would be entitled for multiple fixation of pay on the same day or not. Therefore, the State Government, vide their letter dated 11.06.2010 referred the matter to the Government of India basing on the representation dated 31.03.2009 of the petitioner. In reply, the Government of India, vide their letter 14.01.2011, clarified that the initial pay shall be fixed in PB-4 after grant of an increment @ 3% plus grade pay of Rs.8700 in the Senior Scale of IAS in terms of the provisions contained in Clause 1 of Schedule-I of IAS (Pay) Rules, 2007, as amended vide notification dated 15.04.2009. Therefore, the petitioner is also entitled to have his initial pay in IAS re-fixed on enhance of his State Pay on account of increment of revision of pay scale during the period of probation in terms of Clause-2 of Schedule-I of the Pay Rules. Since the petitioner has been given the benefit of fixation of pay in the Selection Grade of IAS before his actual appointment to the grade, he is not entitled to have his pay re-fixed on his actual appointment to this grade subsequently. Therefore, direction was given Page 23 of 44 for recovery of the excess amount of Rs. 81,825/-, so far as the petitioner in W.P.(C) No. 22292 of 2017 is concerned. Thereby, he contended that no illegality or irregularity has been committed by the authority by issuing such direction and the Tribunal is well justified in rejecting the grievance of the petitioners. Thereby, no interference to the orders so passed by the Tribunal is required. 7. This Court heard Mr. Pitambar Acharya, learned Senior Advocate appearing along with Mr. S.S. Tripathy, learned counsel for the petitioner in W.P.(C) No. 22292 of 2017; Mr. Bibhudhendra Dash, learned counsel appearing for the petitioner in W.P.(C) No. 9877 of 2019; Mr. P.K. Parhi, learned DSGI appearing along with Mr. D.R. Bhokta and Mr. J. Nayak, learned Central Government Counsels for opposite party no.1 in both the cases and Mr. S.N. Nayak, learned Additional Standing Counsel appearing for the opposite party nos. 2 and 3 in both the writ petitions in hybrid mode and perused the records. Pleadings have been exchanged between the parties and with the consent Page 24 of 44 of learned counsel for the parties, the writ petition is being
Decision
disposed of finally at the stage of admission. 8. For a just and proper adjudication of the case, the relevant provisions are referred hereunder:- Rule 4 (3) of IAS (Pay) Rules, 2007:- “The initial pay of a State Civil Service officer, on his appointment to the Service or on appointment in a cadre post in an officiating capacity in accordance with rule 9 of the Indian Administrative Service (Cadre) Rules, 1954, as the case may be, shall be fixed as per the principles laid down I. Further pay and incremental benefits shall accrue to him under the other relevant provisions.” in Schedule IAS (Pay) (Amendment) Rules 2009 amended on 15.4.2009 with retrospective effect from 01.01.2006, vide Para (1) of Schedule I says that: - Notwithstanding anything contained in the first provisio to sub rule (1) of rule 3, and the Notes thereunder, the initial pay of a promoted officer or an officer appointed by selection, as the case may be, shall be fixed in the Pay Band-3 or Pay Band-4 by adding one increment equal to 3% of the sum of pay in the pay band & Grade Pay applicable which will be rounded off to the next multiple of 10. In addition, the Grade Pay of Senior Time Scale or Junior Administrative Grade or Selection Grade. corresponding to the pay scale Or grade pay in the State Service, shall be granted. Provided that the grade pay attached to Selection Grade shall be granted with the pay in running pay band-4 only" Page 25 of 44 Rule 4 (6) of the IAS (Pay) Rules, 2007 as amended on 19.09.2008 provides that:- “The pay of a member of the Service in the Junior Administrative Grade shall, on promotion in the Selection Grade, be fixed in pay and-4 by granting two additional increments, computed on the minimum of the pay band plus grade pay and the grade pay of Rs.8700 shall be granted to the Selection Grade.” Para (7) of Schedule-I to IAS (Pay ) Rules, 2007:- “Notwithstanding anything contained in these rules, the pay of a promoted officer or an officer appointed by selection, as the case may be, shall not at any time exceed the basic pay which he would have drawn as a direct-recruit on that date if he had been appointed to the Indian Administrative Service on the date on which he was appointed to the State Civil Service or in a gazetted post in the non-State Civil Service, after attaining the age of twenty five years, as the case may be.” Rule 5(5) of IAS (Pay) Rules, 2016:- “The pay of a member of the Service in the Senior Time Scale shall, on promotion to the Junior Administrative Grade, be fixed in Level 12 of the Pay Matrix in the same manner as in the case of promotion from Junior Time Scale to Senior Time Scale by adding one increment in the Level 11 of the Pay Matrix from which the Member of service is promoted, he shall be placed at a Cell equal to the figure so arrived at in the Level of the post to which promoted and if no such Cell is available in the Level to which he is promoted then he shall be placed at the next higher Cell in that Level and thereafter two additional increments shall be granted to the Basic Pay in the Level to which the Member of Service has been promoted by Page 26 of 44 incrementally moving down two cells in the new Level to which he has been promoted.” Rule 5(6) of IAS (Pay) Rules, 2016:- “The pay of a member of the Service in the Junior Administrative Grade shall, on promotion in the Selection Grade, be fixed at Level 13 of the Pay Matrix by adding one increment in the Level 12of the Pay Matrix from which the Member of service is promoted, he shall be placed at a Cell equal to the figure so arrived at in the Level of the post to which he is promoted and if no such Cell is available in the Level to which he is promoted, then he shall be placed at the next higher Cell in that Level and increments shall be thereafter two additional granted to the Basic Pay in the Level to which the Member of Service has been promoted by incrementally moving down two cells in the new Level to which he has been promoted.” 9. The above being the provisions of law, the petitioner in W.P.(C) No. 22292 of 2017 joined in IAS, on 17.11.2006, on promotion and was assigned the “Year of Allotment” as 1995 based on his length of service in State Service as per rules, as he had acquired more than 09 years of seniority in IAS. The bone of contention of the petitioner is that he was denied 2 increments on promotion to the “Selection Grade” in IAS, which he is entitled to get as per statutory rules. These increments, though were granted initially, were withdrawn by opposite party no.2 on Page 27 of 44 the basis of the executive instruction dated 14.01.2011 of opposite party no.1, in gross violation of statutory rules, reason being in State service just before promotion to IAS, he was getting a basic pay of Rs.37,400/-, in the scale of pay of Rs.37,400 67.000/- with a Grade Pay of Rs.8,700/-, in Pay Band-4 as per “Odisha Revised Pay Scale Rules, 2008”, on the recommendations of 6th Central Pay Commission Report. On promotion to IAS in “Senior Time Scale” / “Jr. Administrative Grade”, with effect from 17.11.2006, his pay was fixed at same pay of Rs.37,400/- with Grade Pay of Rs.8,700/-in the revised scale of pay of Rs.37,400/- to Rs. 67,000/-, vide Office Order dated 11.02.2009 of opposite party no.2, as per Rule 4(3) read with Schedule-I of IAS (Pay) (2nd Amendment) Rules, 2008, made with retrospective effect from 01.01.2006. 10. The Government of India enacted IAS (Pay) Rules, 2007, vide notification dated 20.3.2007, in supersession to IAS (Pay) Rules, 1954, which was made effective from 01.04.2007. Thereafter, the Govt. of India enacted IAS (Pay) (2nd Amendment) Rules, 2008 with Page 28 of 44 retrospective effect from 01.01.2006. Again, the Government of India enacted IAS (Pay)(Amendment) Rules, 2009 with retrospective effect from 01.01.2006. On a representation by the petitioner, the Government of Odisha refixed his initial pay on promotion from SCS to IAS at Rs.38,790/- by adding one increment on his last State Pay vide their Office Order dated 03.12.2009, but reduced his Grade Pay to Rs.7,600/-from Rs. 8,700/-with effect from 17.11.2006, i.e., in violation of Para (1) of Schedule-l of IAS (Pay) Rules, 2008 (as amended in 2009). Thereafter, the pay of the petitioner was fixed at Rs.45.890/- & Grade Pay at Rs.8,700/-on promotion to “Selection Grade” by granting two additional increments, based on statutory rules. 11. The petitioner submitted 2nd representation to opposite party no.2 to grant two additional increments on promotion to “Junior Administrative Grade” and restore his Grade Pay from Rs.7,600/- to Rs.8,700/ on initial promotion to IAS with effect from 17.11.2006, citing statutory rules. But, on a reference made by opposite party Page 29 of 44 no.2 to opposite party no. 1, the opposite party no.1, i.e. the Government of India, Department of Personnel & Training issued a clarification to opposite party no.2 by stating as follows:- “Sri A.K. Sahu IAS (OR/SCSI995) is entitled to have his initial pay fixed in Pay Band 4 after grant of increment @ 3% plus Grade Pay of Rs. 8,700/- in Senior Scale of IAS in terms of provisions contained in Clause-l of Schedule-I of IAS Pay) Rules, 2007 as amended vide Notification dated 15.4.2009. He is also entitled to his initial pay in IAS refixed on enhancement of his State pay on account of increment or revision of scale during the period of probation in terms of Clause-2 of Schedule-l of the Pay Rules. Since he has been given the benefit of fixation of pay in the "Selection Grade" in IAS before his actual appointment to the Grade, he is NOT entitled to have his pay refixed on his appointment to this subsequently.” 12. Therefore, without complying to Rule 4(6) quoted above, on the basis of a mere clarification/ executive instruction of opposite party no.1, the opposite party no.2 re-fixed / reduced his pay and pension and ordered for refund of the excess amount drawn, even after his retirement by passing the following order:- “But they rectified their mistakes & allowed enhancement of “Grade Pay” from Rs.7,600/- to in Rs. 8,700/- with effect from 17.11.2006, Page 30 of 44 pursuance Notification dated 21.5.2011 of OP No.2. to Rule 4(6) quoted above vide that one will be denied While fixing pay of a SCS Officers on promotion to IAS under Schedule-1, nowhere it is mentioned further increments on his actual promotion to "Selection Grade" even through as per Schedule-1. his initial pay was allowed to be enhanced by adding 01 (one) increment on his state pay, corresponding to Pay Band 3 or 4 of what he was enjoying in state services. In addition, he was entitled to "Grade Pay" of "Sr Time Scale '"/ "Jr Administrative Grade " / Selection Grade", corresponding to the pay scale and Grade Pay in his State Service. To corroborate the above stand, Rule 4(3) of lAS (Pay) Rules, 2007 says that after fixation of his initial pay under Schedule-l, his further pay and incremental benefits shall accrue to him under other relevant provisions. This clarifies there shall be no that distinction between a "Direct Recruit " and a "Promotee recruit'" in IAS except while fixing initial pay of a promnotee recruit.” 13. Needless to mention here, consequent upon IAS (Pay) (Amendment) Rules, 2008, Govt. of India, DoPT- opposite party no.1, vide letter dated 16.12.2008 addressed to all the Chief Secretaries, clarified that while implementing Rule 4(6), after grant of two additional increments on promotion to “Selection Grade”, pay in PB-4 shall not be less than Rs.40,180/-. This concurs that as per rules, two additional increments shall have to be granted on promotion to “Selection Grade”, which means Page 31 of 44 pay on such promotion shall never be below Rs.40,180/- after grant of two additional increments. 14. Para (7) of Schedule-I to IAS (Pay) Rules, 2007, which has been referred to above, nullifies the stand taken by opposite party nos.1 and 2 in denying two additional increments on actual promotion to “Selection Grade” in IAS. This can be fortified that after 7th Central Pay Commission Report, the IAS (Pay) Rules, 2016 was enacted, allowing identical financial benefits to IAS Officers on promotion to the level of “Jr. Administrative Grade” & “Selection Grade” in view of Rule 5 (5) and 5 (6) of IAS (Pay) Rules, 2016, as mentioned above. 15. Under the IAS (Pay) Rules of 2016, an officer on promotion to “Selection Grade” is granted with three increments, i.e., one normal increment and two additional increments. Therefore, as per the analysis and comparison made above, both the rules, namely, (i) IAS (Pay) Rules, 2007 (as amended from time to time till 2009) and IAS (Pay) Rules, 2016 (as amended from time to time) provide Page 32 of 44 additional increments on promotion to “Selection Grade”; in the former whereas, it is two additional increments, in the later, it is three additional increments. Therefore, the executive instruction issued on 14.01.2011 by opposite party no.1 contradicts all statutory rules governing the field. The DoPT, i.e. opposite party no.1, vide their clarification dated 14.01.2011, stated as follows:- "Since Sri Ashok Kumar Sahoo has been given the benefit of fixation of pay in the Selection Grade of IAS. before his actual is NOT appointment to the Grade, he entitled to have his pay refixed on his actual his Grade, subsequently.” appointment to 16. Irrespective of the Pay Scale and Grade pay being enjoyed by a SCS Officer, one is selected for appointment to IAS and rules provided that his State Pay shall have to be protected while fixing his initial pay in IAS, but his pay on future promotions shall have to be dealt under other relevant provisions of the rules. 17. Thereby, no distinction is made in the rules between a Direct recruit vis-a-vis a promote recruit, except as prescribed under Schedule-I on his initial pay fixation Page 33 of 44 on promotion to IAS. The petitioner is granted with one increment over his State Pay on his initial pay fixation in IAS as per Schedule-I to the IAS (Pay) Rules, 2007 (as amended from time to time). Merely because the petitioner, who was an SCS officer, was getting pay scale equivalent to that of Selection Grade of IAS in State Service, before his promotion to IAS, rules nowhere denied; rather provided for granting of two additional increments promotion to “Selection Grade" in IAS. 18. Therefore, all promotions up to the level of “Jr. Administrative Grade” are on non-functional basis, promotion to “Selection Grade” is on availability of vacancies, holding of DPC on the basis of merit as per Rule 3(2)(i) of IAS (Pay) Rules, 2007. Therefore, it is implied that the petitioner is entitled to get two additional increments as per IAS (Pay) Rules, 2007. Thereby, by issuing the executive instruction dated 14.11.2011 the benefit, which has been accrued in favour of the petitioner statutorily, cannot be taken away. In other words, the benefits, which have been extended in favour of the petitioner as per the statutory Page 34 of 44 rules, cannot be withdrawn by issuing executive instructions. 19. Much reliance has been placed on the Office Order dated 14.01.2011, by which the benefit of two increments, which was extended in favour of the petitioner as per the statutory rules, has been directed to be withdrawn. It is profitable to note that executive instruction or office memorandum issued by the department cannot supersede the statutory provisions governing the field. 20. In State of Madhya Pradesh v. Municipal Corporation, Indore, AIR 1987 SC 1983 : 1987 Supp. SCC 748, the apex Court held that the Government cannot restrict the operation of statutory rules by issuing executive instruction. The executive instruction may supplement but not supplant the statutory rules. In Palghat Zilla Thandan Sam,udhaya Samrakshna Samiti v. State of Kerala, (1994) 1 SCC 359, the apex Court held that the Government order cannot have the effect of modifying any Statute. In State of Madhya Page 35 of 44 Pradesh v. G.S. Dal Flour Mill, AIR 1991 SC 772, the apex Court further held that an executive instruction cannot go against the statutory provision so as to whittle down the effect of such provision. 21. In Subhash Ramkumar Bind v. State of